State party

KOREA

Case

Jong‑Kyu Sohn, 518/1992

Views adopted on

19 July 1995

Issues and violations found

Conviction of trade union leader for union‑related statements ‑ freedom of expression ‑ 19, paragraph 2.

Remedy recommended

An effective remedy, including appropriate compensation, for having been convicted for exercising his right to freedom of expression. The Committee further invites the State party to review article 13 (2) of the Labour Dispute Adjustment Act.

Due date for State party response

15 November 1995

Date of reply

16 February 2005

State party response

The State party submits that since the author was found guilty of violating the Labour Dispute Adjustment Act, he is not eligible for criminal compensation from the State under the terms of the Criminal Compensation Act unless he is acquitted of his criminal charges through a retrial. In addition, it states that the Supreme Court, found on 26 March 1999 that the State had no obligation to provide compensation to the author, under the State Compensation Act, with regard to the lawsuit which he had filed against the government based on the Committee’s Views, as the Views are not legally binding and there is no evidence that public officials inflicted damage on the author intentionally or negligently in the course of the investigation or trial. The Act on Restoration of Honour and Compensation for the People Involved in the Democratization Movement, which provides compensation for persons killed or injured in the course of forwarding the democratization movement, is not applicable in the author’s case as he was not injured. However, his honour was restored and he has been involved in the democratization movement. The State party submits that he was granted a special pardon on 6 March 1993.To prevent recurrence of similar violations, the Trade Union and Labour Relations Adjustment Act, enacted in March 1997, has repealed the provisions of the previous Labour Dispute Adjustment Act prohibiting third party intervention in labour disputes. Now under article 40 of the new Act, during collective bargaining or industrial action, a trade union may be supported by third parties such as a confederation of association organizations of which the trade union is a member or a person nominated by the trade union.

State party

LATVIA

Case

Ignatane, 884/1999

Views adopted on

25 July 2001

Issues and violations found

Arbitrary denial of candidature eligibility on basis of language ‑ article 25.

Remedy recommended

“An effective remedy”.

Due date for State party response

29 October 2001

Date of reply

July 2004 ‑ had previously responded on 7 March 2002

State party response

In July 2004 and following a request by the Special Rapporteur in the Follow‑up Report (CCPR/C/80/FU1) and referred to in the Annual Report (CCPR/C/81/CRP.1/Add.6), the State party provided a copy of its legislative amendments which, the State party had submitted in earlier correspondence, removed the problematic issues identified by the Committee it is Views.

State party

LIBYAN ARAB JAMAHIRIYA

Case

El Megreisi, 440/1992

Views adopted on

23 March 1994

Issues and violations found

The victim was kept in incommunicado detention, in a secret location, for years without ever being charged. The Committee concluded that his rights under articles 7, 9 and 10, paragraph 1 had been violated.

Remedy recommended

The Committee urged the State party to take effective measures to secure the victim’s immediate release and provide him with compensation.

Due date for State party response

July 1994

State party response

None

Further action taken/required

During the eighty‑fourth session, the Special Rapporteur met with a representative of the State party and discussed follow‑up to the Committee’s Views. The State party representative indicated that a previous request for pertinent follow‑up information from the competent authorities had gone without reply, but he pledged to cooperate with the Committee on follow‑up in the future.

State party

LIBYAN ARAB JAMAHIRIYA

Case

El Ghar, 1107/2002

Views adopted on

29 March 2004

Issues and violations found

Refusal by the State party to issue the author with a passport ‑ article 12, paragraph 2.

Remedy recommended

The State party is under an obligation to ensure that the author has an effective remedy, including compensation. The Committee urges the State party to issue the author with a passport without further delay.

Due date for State party response

4 February 2005

State party response

None

Author’s response

In a letter dated 23 June 2005 the author referred to the State party’s failure to implement the Committee’s Views. She had recently met with the Libyan consul in Casablanca, who informed her that he was not in a position to issue the passport, as the decision to that effect had to be taken by the central authorities.

Further action taken/required

During the eighty‑fourth session, the Special Rapporteur met with a representative of the State party and discussed follow‑up to the Committee’s Views. The State party representative noted that the Libyan embassy in Morocco had once again been instructed to issue a passport to the author; he expressed confidence that a passport would be issued to Ms. El Ghar within weeks.

State party

MADAGASCAR

Cases

Marais, 49/1979; Wight, 115/1982; Joana 132/1982; Hammel 155/1983.

Views adopted on

29 October 1981; 1 April 1984; 1 April 1985; and 3 April 1987, respectively.

Issues and violations found

1.Poor prison conditions and no access to counsel ‑ article 7, 10 paragraph 1, 14, paragraph 3 (b), (d).

2.Poor prison conditions and no access to counsel ‑ article 7, 10, paragraph 1, 1, paragraph 3 (b).3.Arrest and detention on account of his political opinions; failure to inform of the reasons for his arrest; persecution on account of his political opinions ‑ articles 9, paragraphs 1 and 2 and 19, paragraph 2.4.Unable to take proceedings before a court to determine the lawfulness of his arrest; not allowed to submit the reasons for his expulsion ‑ articles 9, paragraph 4, and 13.

Remedy recommended

1.An effective remedy for the violations which he has suffered and a decision by the State party to release Mr. Marais, prior to completion of his sentence, in response to his petition for clemency.

2.Take effective measures.

3.To take effective measures to remedy the violations which Monja Jaona has suffered, to grant him compensation under article 9, paragraph 5, of the Covenant, on account of his arbitrary arrest and detention.

4.Take effective measures.

Due date for State party response

29 February 1982; 1 August 1985; 1 August 1985; and 3 August 1987, respectively.

State party response

None

Further action taken/required

During the eighty‑second session, on 28 October 2004, the Special Rapporteur met with a representative of the State party, who confirmed that she would relay the request for information in relation to these cases to her capital and request a written response to the Committee’s Views. No response has been forthcoming.

State party

NETHERLANDS

Case

Derksen, 976/2001

Views adopted on

1 April 2004

Issues and violations found

Discrimination in provision for orphans ‑ article 26.

Remedy recommended

The State party is under an obligation to provide half orphans’ benefits in respect of Kaya Marcelle Bakker or an equivalent remedy.

Due date for State party response

24 August 2004

Date of reply

19 August 2004

State party response

While recognizing the importance of the individual complaints procedure and the seriousness of the Committee’s decisions, the State party challenges the decision in this case. It fails to see how there can be unequal treatment in a situation in which none of the groups compared can derive entitlements from the legislation concerned. No half‑orphans can claim entitlement in their own right to surviving dependents’ benefit, not even those who are born from a relationship, marital or otherwise, which ended after 1 July 1996 with the death of one of the parents. According to the State party, one can only talk of a victim of direct or indirect discrimination, when someone is denied certain rights that are accorded to others in the same situation. In the case at issue, this would be the surviving parent, as it is the surviving parent to whom the benefit is awarded, and who may dispose of it entirely as he or she sees fit. Although the additional benefit is awarded to help pay for the maintenance of minor children, the State does not possess any instrument to guarantee or verify that it is used in this way. However, precisely in relation to the person entitled to benefit, the surviving parent, the Committee has determined that the failure to apply the new legislation to old cases does not amount to discrimination within the meaning of article 26. The State party is therefore unable to follow the reasoning that led the Committee to reach a different conclusion in relation to benefit for the maintenance of the half‑orphan. The State party refers to the judgement of the European Court of Human Rights in the comparable case of Van Bouwhuijsen and Schuring v. The Netherlands, which dealt with half‑orphans’ benefit under the old legislation. The Court pointed out that benefit for the half‑orphans had been refused not because the child had been born out of wedlock, but because the AWW did not provide for entitlement to benefit for half‑orphans. The State party concludes from this that denying someone who is excluded by definition from entitlement to benefit under the terms of the legislation concerned cannot be classified as discrimination.

Author’s response

On 3 December 2004, author’s counsel expresses his disagreement with the State party’s view. He states that the decision of the ECHR, cited by the State party does not support its view. The Court did not consider the substance of the complaint as the half orphan in question could not make an independent claim to the half‑orphan’s pension ‑ it being granted to the surviving spouse. The Court found that the half orphan could not invoke article 1 of the Protocol number 1 of the Convention, as article 14 has no independent existence since it has effect only in relation to the “enjoyment of rights safeguarded by those provisions”. Article 26 of the Covenant is wider and thus the preliminary condition which was at issue in the case before the ECHR was not at issue in this case.

Counsel submits that it is not at issue that the half‑orphan’s pension is provided on behalf of the half orphan and refers to a number of undisputed quotes from the history of the act.It is logical, in counsel’s view, that benefits for children in the form of children’s allowance or a half‑orphan’s pension, are granted to the caregiving parent, as this (mostly) involves young children who do not have legal capacity. It is self‑evident that such benefits are in the children’s interest and that these children are entitled to the benefits. These benefits enable the child’s caregiving parent, the dependent of the deceased parent of the child, to acquire extra financial resources to be spent on the child.

Counsel regrets the State party’s disregard for the Committee’s Views and requests the Committee to urge the State party to comply with the remedy included therein.

State party

NORWAY

Case

1155/2003, Leirvag

Views adopted on

3 November 2004

Issues and violations found

Failure to allow exemptions from teaching of “life stance” subject in schools is a violation of article 26 ‑ Parental right to provide education to their children ‑ article 18, paragraph 4.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective and appropriate remedy that will respect the right of the authors as parents to ensure and as pupils to receive an education that is in conformity with their own convictions. The State party is under an obligation to avoid similar violations in the future.

Due date for State party response

6 February 2005

Date of reply

4 February 2005

State party response

Amendments in the legal framework and curriculum

The State party submits that the government will propose to Parliament that for the forthcoming school year, from August 2005, the following changes should enter into force: The deletion of the reference in section 2‑4 of the Education Act to the object clause 1‑2. Thus, section 2‑4 would no longer prescribe that the object of the subject CREE is “to help to give students a moral and Christian upbringing”. Furthermore, section 2‑4 will be amended so that the different religions and philosophies of life are treated in a qualitatively equal manner. Changes to the national curriculum will be made accordingly.Amendments related to the exemption scheme

The following amendments will also be proposed to enter into force from August 2005:

The right to exemption from any part of the school curriculum that could be conceived of as the practice of a particular belief will be set out in a separate section of the Education Act, in an effort to make it clear that the right to exemption from the practice of religious belief applies to all aspects of primary and lower secondary education.

The Minister’s circular on CREE will be amended to clearly identify those elements of the subject that could be conceived of as practice of a particular belief. The rules enabling parents to enrol their children in the exemption scheme will be simplified. The duty of schools to provide information to the parents about their right to exemption from any part of the teaching that they conceive of as the practice of religion will be stipulated in the Education Act.

The amended circular on CREE will also instruct teachers to pay particular attention when using teaching methods that students could conceive of as the practice of a religion. If such methods are used, alternative instruction is to be offered.

Intermediate measures

Until these measures are implemented students will be granted a temporary right to exemption from the subject CREE, under which a written notice from parents will be sufficient for the students to be exempted. Schools will have a duty to attempt as far as possible to offer alternative teaching to these students.

Authors’ comments

On 15 April 2005, the authors state that the State party’s submission does not contain enough substance to determine how the mentioned changes in regulations and curricula will be carried out. They refer to a more detailed version of the remedies proposed in the “hearing document” of the Ministry of Education and Research of 8 February 2005, which has been sent to many organizations and institutions for comment by 29 March 2005. It states that a translated version of this document should be requested of the State party. The government’s consideration of comments received has not yet been made public and a recommendation for Parliament concerning amendments of the Education Act has not yet been presented. Although the measures submitted by the State party have not been clarified, the author’s preliminary view is that the proposed amendments do not fulfil the obligations under article 2 of the Covenant. They state, inter alia, that: the amendment to section 2‑4 will not in itself solve the problem of an object clause which gives the prerogative to one particular religion; there will be no “qualitatively equal” treatment as the CKREE subject is based on the storytelling tradition, which is only appropriate for teaching Christianity and other religions but not for life stances with for instance a humanist outlook; and that the government does not intend to change the character/general profile of the CKREE subject as practising belief. As to the exemption, the authors note that the State party accept that such a right is necessary in order to avoid further violations of the Covenant but that the proposed simplification procedure does not entail substantial changes to parents’ rights since the school has the prerogative to determine whether or not the parent’s conviction on this issue is “reasonable”. In the authors’ view the best way to have implemented the Committee’s decision would have been to fully revise the CKREE subject in a way that considers the freedom of religion for all students ‑ regardless of faith or personal conviction as to life stance.

State party

THE PHILIPPINES

Case

Cagas, 788/1997

Views adopted on

23 October 2001

Issues and violations found

Right to be tried without undue delay, right to presumption of innocence, and unreasonable delay in pretrial detention ‑ articles 9, paragraph 3, 14, paragraph 2, 14, paragraph 3 (c).

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, which shall entail adequate compensation for the time they have spent unlawfully in detention. The State party is also under an obligation to ensure that the authors be tried promptly with all the guarantees set forth in article 14 or, if this is not possible, released.

Due date for State party response

9 May 2002

Date of reply

19 August 2004

State party response

The State party submits that it did not provide information on the merits of this case, nor on counsel’s supplementary comments, prior to consideration by the Committee as it believed the case to be inadmissible.As to the issues raised under articles 9, paragraph 3, and 14, paragraph 3, the State party submits that the delay in the trial was caused by the authors themselves when they questioned the trial court’s denial of their petition for bail to the Supreme Court. According to the State party, this was a deliberate attempt by the authors to avoid, or at least delay, the trial of the case. As to the Committee’s recommendation on compensation, the State party submits that any liability for unlawful detention would depend on the acquittal of the accused. In the event of an acquittal, the corresponding compensation for the time they have spent unlawfully in detention would have to be determined by the Board of Claims under the Department of Justice and/or by the Philippine Commission on Human Rights, the latter being the agency vested by the Constitution with the authority to provide for compensation to victims of violations of human rights. As to the recommendation of a fair trial, it informs the Committee that as of 22 March 2002, the Regional Trial Court in Pili, Camarines Sur “has concluded the trial of the above‑mentioned case and that as from that date the same had already been submitted for decision.”

On 3 June 2005, and in response to counsel’s submission, the State party informed the Special Rapporteur that on 18 January 2005, the Regional Trial Court of Pili, Camarines Sur, pronounced its judgement. The accused Cagas, Butin, and Astilero were all found guilty by the trial court of multiple murder, qualified by treachery, for the killing of Dr. Dolores Arevalo, Encarnacion Basco, Arriane Arevalo, Dr. Analyn Claro, Marilyn Oporto and Elin Paloma. Cagas and Antillero were sentenced to reclusion perpetua for each of the murders. Butin died before the rendering of the final judgement.

Author’s response

On 24 October 2004, authors’ counsel commented that the denial of bail was pursued to the Supreme Court as it was considered unlawful and unfair, and was not for the purposes of delaying the trial. The delay was brought about by the judiciary’s failure to schedule the case for trial, even after the issue of bail had been considered. Counsel denies that this case has been heard. He states that the date of submission of the last pleading to the court was on 2 August 2000, and that according to the court’s rules the case should have been heard within 90 days of that date. On 18 July 2003, counsel filed an urgent ex parte plea for a resolution without success. Finally, counsel states that the State party omitted to inform the Committee that one of the authors, Mr. Wilson Butin, died of natural causes while in preventive detention and while waiting for a judgement in this case.

Further action taken/required

The Special Rapporteur met with a representative of the State party during the eighty‑fourth session. See below.

State party

PHILIPPINES

Case

Wilson, 868/1999

Views adopted on

30 October 2003

Issues and violations found

Mandatory death penalty for rape after unfair trial ‑ “most serious” crime. Compensation after acquittal ‑ articles 7, 9, paragraphs 1, 2, and 3, 10, paragraphs 1, and 2.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy. In respect of the violations of article 9 the State party should compensate the author. As to the violations of articles 7 and 10 suffered while in detention, including subsequent to sentence of death, the Committee observes that the compensation provided by the State party under its domestic law was not directed at these violations, and that compensation due to the author should take due account both of the seriousness of the violations and the damage to the author caused. In this context, the Committee recalls the duty upon the State party to undertake a comprehensive and impartial investigation of the issues raised in the course of the author’s detention, and to draw the appropriate penal and disciplinary consequences for the individuals found responsible. As to the imposition of immigration fees and visa exclusion, the Committee takes the view that in order to remedy the violations of the Covenant the State party should refund to the author the moneys claimed from him. All monetary compensation thus due to the author by the State party should be made available for payment to the author at the venue of his choice, be it within the State party’s territory or abroad.

Due date for State party response

10 February 2004

Date of reply

12 May 2005

State party response

The State party is “disinclined” to accept the Committee’s findings of facts, more particularly its assessment of evidence. It submits that the findings rests on faulty appreciation of facts and it is doubtful if the facts disclosed by the complainant would by themselves support the findings. It contests the finding that the compensation provided was inadequate. It submits that the author failed to discharge the burden of proof; ex parte statements made by the complainant are not considered evidence and do not constitute sufficient proof of the facts alleged. An investigation conducted by the City jail Warden of the Valenzuela City Jail, where the author was confined, disputed all allegations made by the author. The author had failed to provide specific acts of harassment to which he was supposedly subjected to while in prison and did not identify the prison guards who allegedly extorted money from him. As the author had already flown home while the communication was pending before the Committee he could not have feared for his security by naming those who had allegedly ill‑treated him. It reiterates its submission that the author failed to exhaust domestic remedies. Finally, it considers that the compensation provided is adequate that the author has not yet sent an authorized representative to claim the checks on his behalf and that by insisting that the State party make available to the complainant all monetary compensation due to him, “the Committee might have exceeded its competency and caused great injustice to the State party.”

Further action taken/required

The Special Rapporteur met with a representative of the State party during the eighty‑fourth session. See below.

State party

PHILIPPINES

Case

Carpo, 1077/200

Views adopted on

28 March 2003

Issues and violations found

Death sentence ‑ article 6, paragraph 1.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective and appropriate remedy, including commutation. The State party is under an obligation to avoid similar violations in the future.

Due date for State party response

12 August 2003

Date of reply

5 October 2004

State party response

The State party submitted that as to the finding of a violation of article 6, paragraph 2, the Committee’s finding that the offence of murder entails a very broad definition, “requiring simply the killing of another individual”, is incorrect and there exists in the State party’s Penal Code a clear distinction between different types of unlawful killings. Thus, the State party cannot be held liable for arbitrary deprivation of life on the basis of such an unfounded conclusion.

It also submits that it cannot be concluded that the imposition of the death penalty was made by automatic imposition of article 48 of the Revised Penal Code. Such a conclusion rests on the false assumption that article 48 provides for the mandatory imposition of the death sentence in cases where a single act results in several unlawful killings. It is argued that there is no indication in the phraseology of this provision which indicates that the term “maximum period” alludes to the penalty of death. Article 48 merely prescribes that if one single act results in two or more offences, the penalty for the most serious crime will be imposed i.e. a penalty lower that the aggregate of the penalties for each offence, if imposed separately.

Similarly, the State party submits that there is nothing in this provision which authorizes local courts to disregard the personal circumstances of the offender as well as the circumstances of the offence in considering cases which involve complex crimes. In its view, no persuasive basis was laid down to justify the conclusion that the imposition of the death penalty upon the authors was made “without regard being able to be paid to the authors’ personal circumstances or the circumstances of the particular offence.”

Finally, as to the conclusion that the authors did not receive a real review in the Supreme Court, which practically foreclosed the presentation of any new evidence, the State party submits that this Court is not a “trier” of facts and is not obliged to repeat the proceedings before the trial courts. A review by the Supreme Court is meant to ensure that the conclusions of the trial court are consistent with prevailing laws and procedures. In addition, it adds that there is nothing on record to show that the authors were going to present new evidence not previously considered by the trial court.

Further action taken/required

On 21 July 2005, the Special Rapporteur held follow‑up consultations with a representative of the State party. He noted that two follow‑up replies remained outstanding and that other replies might be construed as not being satisfactory, constituting in reality belated merits submissions rather than follow‑up submissions. The State party representatives pledged to secure follow‑up information in the outstanding cases (1167/2003, Ramil Rayos, and 1110/2002, Rolando) and to seek confirmation as to whether there would be additional follow‑up submissions in the other cases, notably in the cases of Wilson (868/1999) and Piandiong (869/1999).

State party

RUSSIAN FEDERATION

Case

Smirnova, 712/1996

Views adopted on

5 July 2004

Issues and violations found

Pretrial detention; failure to be informed of the grounds of arrest or of any of the charges against her; failure to be brought promptly before a judge or judicial officer; denial of the right to take proceedings before the court on the lawfulness of her arrest; conditions of detention and lack of medical treatment ‑ articles 9, paragraphs 3, and 4 and 10, paragraph 1.

Remedy recommended

An effective remedy, including appropriate compensation for the violations suffered.

Due date for State party response

28 October 2004

Date of reply

24 November 2004

State party response

The State party sets out a brief factual background. It then submits that the author’s complaint about the unlawfulness of her detention was reviewed by the court in accordance with the legislation which then prevailed. Section 331 did not allow for a challenge to a decision taken by a court under section 220‑2. A decision of the Constitutional Court in 1998 found section 331 to be unconstitutional in so far as it did not allow for an appeal against judicial decisions relating to pretrial detention. Since this decision, appeals against decisions of a court under section 220‑2 are possible and have occurred.

The Supreme Court ruling was reflected in the new Criminal Procedure Code. The right to appeal a decision on pretrial detention is fully used by those involved in the criminal justice system. In the first half of 2004, Russian courts examined 116,760 motions/appeals in relation to decisions to detain people in pretrial detention. 105, 364 of these have been upheld, i.e. 90.2 per cent.

The Plenary of the Supreme Court is currently reviewing questions regarding the process of extending the term of pretrial detention for the purposes of establishing a uniform recommendation on this practice.

The Committee’s conclusions that the State party violated article 10, paragraph 1, are, in the State party’s view, not substantiated/justified. On 10 December 1996 the author was placed in a special “open” detention centre for women, No 6 in Moscow, the conditions of which are recognized as satisfactory. During her detention, the author required medical assistance. The facts regarding the worsening of her chronic condition (vasculitis) were not known at that stage. According to doctors who treated her at the time, there was no medical basis for her not to be placed in pretrial detention. The author made numerous appeals and protests, but never complained about the conditions of detention.

State party

RUSSIAN FEDERATION

Case

Lantsova, 763/1997

Views adopted on

26 March 2002

Issues and violations found

Death in custody; poor conditions of detention ‑ articles 6 and 10.

Remedy recommended

The Committee is of the view that Mrs. Lantsova is entitled, under article 2, paragraph 3 (a) of the Covenant, to an effective remedy. The State party should take effective measures: (a) to grant appropriate compensation (b) to order an official inquiry into the death of Mr. Lantsov; and (c) to ensure that similar violations do not recur in the future, especially by taking immediate steps to ensure that conditions of detention are compatible with the State party’s obligation under articles 6 and 10 of the Covenant.

Due date for State party response

22 September 2002

Date of reply

23 September 2004

State party response

The State party reiterated its previous arguments of 16 October 2002 (see A/58/40, p. 123, para. 247) ‑ that an internal investigation of the cause of the author’s death was already held in 1995, as well as an inquiry of the independent Commission of medical experts. Their conclusions did not reveal any illegal action of the detention centre’s personnel.

State party

RUSSIAN FEDERATION

Case

Gridin, 770//1997

Views adopted on

20 July 2000

Issues and violations found

Unlawful arrest and detention (warrant issued three days after the beginning of the detention) and denial of access to a lawyer, unfair trial, violation of the presumption of innocence ‑ articles 9, paragraph 1 and 14, paragraphs 1, 2 and 3 (c).

Remedy recommended

Compensation and author’s immediate release.

Due date for State party response

14 December 2000

Date of reply

23 September 2004 (the State party had previously responded on 18 October 2001 [see Annual Report A/57/40 (Vol. I])

State party response

In its second response to the Committee’s Views, the State party noted that these Views were reviewed in the Supreme Court, but that the arguments in the Committee’s decision were found to be unsubstantiated (“without confirmation”), even upon a second review of the materials of the case.In accordance with law, the author was arrested on 26 November 1989. His arrest was sanctioned by the procurator on 29 November 1989. He was allowed access to a lawyer from the moment he was charged, as per legal requirements. He never complained about not having access to a lawyer, and a lawyer did in fact take part in all aspects of the case. His right to a legal defence was therefore not violated.

In view of the fact that he was accused of rape, the author was tried in private session. No violations of the criminal procedure code were identified in relation to the examination of the forensic and other evidence. Gridin and his lawyer were given proper access to relevant materials in order to prepare the defence.

Finally, the State party argues that it is well established that the Committee is not a court and that its views are recommendatory. Such views are highly authoritative for the State party’s authorities, and they are taken very seriously; thus the State party conducted a second review of this case. However, the State party’s conclusions in this matter remain the same.

Author

In a letter received on 20 June 2005 the lawyer complains about the fact that the Committee’s recommendation has not been implemented.

State party

RUSSIAN FEDERATION

Case

Dugin, 815/1998

Views adopted on

5 July 2004

Issues and violations found

Improper pretrial investigation and unfair trial ‑ article 14.

Remedy recommended

Pursuant to article 2, paragraph 3 (a) of the Covenant, the Committee considers that the author is entitled to an appropriate remedy, including compensation and his immediate release.

Due date for State party response

3 October 2004

Date of reply

10 December 2004

State party response

The State party reiterated the information provided in its submissions to the Committee prior to consideration. The author’s trial occurred in 1995 in accordance with the previous Criminal Code of the Russian Soviet, Federative, Socialist Republic (i.e. old USSR era Code) of 1960. The witness whom the author wanted to call, Chikin, was one of the victims; he was also a witness to the murder of Naumkin. The law allowed the Court to proceed with the trial even in the event that such a witness did not appear to give evidence. In accordance with law, the Court in this case considered whether to continue with the case, or adjourn the case until Chikin could be brought to court to testify; it decided to continue with the trial because it considered that even in the absence of Chikin it would be possible to arrive at a full understanding of what had occurred. The law allowed for the written statement given by Chikin when examined by the investigator to be read out into court, in circumstances where it is not possible to have the witness appear in court; and this is what occurred. (The police couldn’t find Chikin to get him to testify).

On 1 July 2002, a new Criminal Code came into force in the State party. It contains similar provisions to those mentioned above.

In relation to the issue of the expert evidence, the author was able to ask for explanations and further information regarding the conclusions of the expert after these had been read out in Court. However, calling the expert to appear in court was not compulsory under the old Code, nor is it compulsory under the new code.

Author’s response

On 20 March 2005, author’s counsel commented on the State party’s submission. He submitted that it did not contain any convincing arguments addressing his client’s position; it does not address the issue of the State party’s obligation to take all measures to provide for the examination of witnesses. Further, no information was provided about the why the medical expert was not examined in court.

State party

RUSSIAN FEDERATION

Case

Telitsin, 888/1999

Views adopted on

29 March 2004

Issues and violations found

No effective investigation following torture and inhuman treatment in detention resulting in death ‑ articles 6, paragraph 1, 7 and 10, paragraph 1.

Remedy recommended

An effective remedy. The Committee invited the State party to take effective measures (a) to conduct an appropriate, thorough and transparent inquiry into the circumstances of the death of Mr. Vladimir Nikolayevich Telitsin; and (b) to grant the author appropriate compensation.

Due date for State party response

20 July 2004

Date of reply

24 November 2004 and 17 January 2005

State party response

The State party informs the Committee that, on 6 September 2004, at the direction of the General Procurator, the Procurator of the Sverdlovsk region changed the decision not to initiate criminal proceedings in relation to the author’s death, on the basis that the investigation into the circumstances of the matter had been incomplete.

An additional examination was ordered, which was conducted by the Nizhnetagilski procurator. The medical expert Isakova, who had examined Telitsin’s body, was re‑questioned. She said that aside from a strangulation mark, no other injuries were identified on the body. She considered that death had resulted from asphyxiation caused by a noose. A nurse, Kudrinova, who attended the autopsy, confirmed these views.

In order to test the contentions of the author that death was occasioned with the participation of certain prison guards, archival material from 1994 was examined. According to available data, the guards in question have now retired and no longer work at the prison. In view of the time frames for retention of documents regarding prison personnel, all measures are being taken to identify the documents in question.

An expert review of the post mortem photographs has been ordered. For technical reasons this cannot take place in the prison, so it is being conducted elsewhere in the region.

Because the author refused to appear at the procurator’s office to explain her arguments for the exhumation of the body and other matters, the Nizhnetagilski procurator decided on 24 September 2004 to refuse to open a criminal case. However, this decision was revoked on 30 September 2004 by the same body, and in the near future it is intended to exhume the body of Telitsin, to examine the post mortem photographs and question the former prison guards.The investigation is continuing under the supervision of the General Procurator.On 17 January 2005, the State party submitted that in order to check the allegations made by Telitsina about the mistreatment of her son (death in custody), the Nizhnetagilski Procurator undertook a further investigation, during which the body of Telitsina’s son was exhumed; other tests and verifications (unspecified) were also conducted. There was no evidence of any crimes having been inflicted on Telitsin, and accordingly on 8 October 2004 a decision was taken (presumably by the same procurator’s office) not to instigate any criminal investigation. The General Procurator of the Russian Federation also examined the materials above, and agreed with this conclusion.

On 9 March 2005, the State party provided a copy of a decision of 8 October 2004, by which the Senior Assistant of the Prosecutor of Nizhyi Tagil had rejected Mrs. Telitsina’s request to open a criminal case in relation to her son’s death. The prosecutor had examined the author’s allegations and confronted them with existing evidence, including witnesses’ depositions, and the results of the examination, on 6 October 2004, of the exhumed body of the alleged victim. The prosecutor decided not to open a criminal case for absence of corpus delicti.

State party

SPAIN ‑ GENERAL INFORMATION ON CASES RELATING TO ARTICLE 14, PARAGRAPH 5 VIOLATIONS

On 16 November 2004, the State party informs the Committee that Law 19/2003, of 23 December 2003, came into force on 16 January 2004. This law introduces the remedy of appeal against the judgements of the National Court (Audiencia Nacional) and those of the Provincial Courts (Audiencias Provinciales). It is intended to reduce the backlog of cases of the Supreme Court and to comply with the Committes’s Views in Gómez Vásquez’s case. Although the law was passed and has come into effect, the State party insists that: (i) the previous system of appeal (cassation) was very similar to other European systems and even broader than some of its European counterparts, as it allowed for a review when there was a factual mistake in the weighing of evidence, bypassing the scope of traditional remedy of cassation, which was limited to points of law; (ii) the European Court of Human Rights had found that the Spanish cassation complied entirely with the right to have the sentence reviewed by a higher tribunal; and (iii) that cassation was broad enough to encompass situations in which the presumption of innocence is involved.According to the State party, no provision of the Covenant could oblige the State party to modify sentences already executed because this would violate the principle of res judicata. This conclusion is applicable to all communications already examined by the Committee as well as new communications, related to sentences and convictions passed before the entry into force of Law 19/2003, which raise the issue of the compatibility of Spanish cassation with article 14, paragraph 5, of the Covenant. Law 19/2003 is procedural in nature and does not have any retroactive effect.

Author

In March 2005 the lawyer in some of the cases where the Committee found violations of article 14, paragraph 5, informed the Committee that the State party had not taken legislative measures aiming at the implementation of the Committee’s recommendations. There is no procedure in Spain, in general, to implement the decisions/judgements on individual complaints of the international human rights bodies, a situation that has been denounced by the Ombudsman, bar associations and NGOs. A bill introduced in October 2002 to that effect was rejected by the Parliament.

State party

SPAIN

Case

526/1993, Hill et al.

Views adopted on

2 April 1997

Issues and violations found

Prolonged pretrial detention and impossibility of the accused to defend themselves in person before the Spanish Courts ‑ articles 9, paragraph 3, 10, 14, paragraph 3 (c), and 5 for both authors, plus 14, paragraph 3 (d) in respect of M. Hill only.

Remedy recommended

Pursuant to article 2, paragraph 3 (a), of the Covenant, the authors are entitled to an effective remedy, entailing compensation.

Due date for State party response

On 9 October 1997, the State party had provided information on the possibility of seeking compensation.

Date of reply

16 November 2004

State party response

The State party submits that the author filed an application to have his conviction and sentence quashed. The Constitutional Court dismissed the application, but indicated that the author should file an appeal (revision). The author filed an appeal (revision) with the Second Chamber of the Supreme Court, which on 25 July 2002 decided to set aside the decision of the appellate court (Supreme Court) and again rejected the author’s original appeal (cassation). This second judgement of the Supreme Court, unlike the previous judgement duly analysed the evidence, prior to rejecting the appeal (cassation). The author filed an appeal (amparo) with the Constitutional Court which is still pending. He also filed a suit in law against the Ministry of Justice for wrongful administration of justice. This claim was dismissed and an appeal with the National Court is still pending.

State party

SPAIN

Case

701/1996, Gómez Vásquez

Views adopted on

20 July 2000

Issues and violations found

Denial of an effective appeal against conviction and sentence for the most serious crimes (incomplete judicial review) ‑ article 14, paragraph 5.

Remedy recommended

Effective remedy, author’s conviction must be set aside unless it is subjected to review in accordance with article 14, paragraph 5.

Due date for State party response

14 November 2000 ‑ The State party has previously responded on.

State party response

On 16 November 2004, the State party submits that on 14 December 2001, the Plenary of the Supreme Court decided to dismiss the application to have the author’s conviction quashed. This is a landmark decision of the Supreme Court on the compatibility of the Spanish cassation with the requirements of article 14, paragraph 5, of the Covenant.

State party

SPAIN

Case

1007/2001, Sineiro

Views adopted on

7 August 2003

Issues and violations found

Denial of an effective appeal against conviction and sentence for the most serious crimes (incomplete judicial review) ‑ article 14, paragraph 5.

Remedy recommended

Effective remedy, author’s conviction must be set aside unless it is subjected to review in accordance with article 14, paragraph 5.

Due date for State party response

20 November 2003

Date of reply

16 November 2004

State party response

The State party submits that on 16 February 2004, the Second Chamber of the Supreme Court dismissed an application for the annulment of the sentence and conviction.

State party

SPAIN

Case

986/2001, Semey

Views adopted on

30 July 2003

Issues and violations found

Denial of an effective appeal against conviction and sentence for the most serious crimes (incomplete judicial review) ‑ article 14, paragraph 5.

Remedy recommended

The author should be entitled to have his conviction reviewed in conformity with the requirements of article 14, paragraph 5, of the Covenant.

Due date for State party response

20 November 2003 ‑ State party had responded on 5 March 2004 (see A/59/40)

Date of reply

16 November 2004

State party response

The State party submits that other than having sent letters to the Committee, the President of the Republic and the Ministry of Justice, there is no indication that the author has filed any appeal before the domestic courts.

State party

SRI LANKA

Case

Kankanamge, Victor Ivan, 909/2000

Views adopted on

29 July 2004

Issues and violations found

Intimidation of journalist by repeated presentation of defamation indictments ‑ articles 2, paragraph 3, 14, paragraph 3 (c), and 19.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy including appropriate compensation. The State party is also under an obligation to prevent similar violations in the future.

Due date for State party response

24 November 2004

Date of reply

2 February 2005

State party response

The State party submits that the government of Sri Lanka will refer the case to the Human Rights Commission of Sri Lanka to make recommendations on the question of payment of compensation, including the determination of the quantum of such compensation.

State party

SRI LANKA

Case

Jayawardena, 916/2000

Views adopted on

22 July 2002

Issues and violations found

Death Threats against Member of Parliament ‑ article 9, paragraph 1.

Remedy recommended

“an appropriate remedy”

Due date for State party response

22 October 2002

Date of reply

9 September 2004

State party response

(Reproduced in previous Interim Follow‑up Report) Pursuant to the Committee’s views, the State party made further inquiries in the course of which the author had made another statement. Since he had been unable to identify the persons who had allegedly threatened him, no further legal action was taken. Nevertheless, the Government had agreed to provide additional protection for him if and when it became necessary. No such requests for additional protection have been made by him. In view of the above, the State party considers the matter closed.

Following the author’s response of 18 October 2004, the State party submitted further comments on 24 March 2005. It stated that the deployment of security personnel for VIPs by the Police is effected on the basis of circular instructions issued by the Inspector General of Police. Accordingly, a Member of Parliament is entitled only to two security personnel. The threat perception report received from the Intelligence Services has not categorized Dr. Jayawardena as a Member of Parliament, having a threat for any source. However, in consideration of his request, two additional security personnel have been provided to him, increasing the total strength of his security staff to four.

Author’s response

(New information from author) On 18 October 2004, the author responded to the State party’s submission. He states that the State party has taken no steps to investigate his complaints of death threats. He requested additional security from the State party but has not yet received a positive response, in fact his security has been reduced. The President has not taken any steps to withdraw or to rectify the allegations which she made against him. He submits that he was elected again as a Member of Parliament at the elections held in April 2004, is currently the shadow Minister of Rehabilitation, Resettlement and Refugees, and through his work has made representations regarding the violations of human rights of opposition Members of Parliament. For this reason, he alleges that his life has become more vulnerable. He requests the Committee to inform the President of Sri Lanka to provide him with additional security as requested, as early as possible, and to continue to investigate his complaints.

State party

SRI LANKA

Case

Sarma, Jegatheeswara, 950/2000

Views adopted on

16 July 2003

Issues and violations found

Military detention, mistreatment and disappearance ‑ articles 7 and 9.

Remedy recommended

The State party is under an obligation to provide the author and his family with an effective remedy, including a thorough and effective investigation into the disappearance and fate of the author’s son, his immediate release if he is still alive, adequate information resulting from its investigation, and adequate compensation for the violations suffered by the author’s son, the author and his family. The State party is also under an obligation to expedite the current criminal proceedings and ensure the prompt trial of all persons responsible for the abduction of the author’s son under section 356 of the Sri Lankan Penal Code and to bring to justice any other person who has been implicated in the disappearance.

Due date for State party response

4 November 2003

Date of reply

2 February 2005

State party response

The State party submits that the criminal proceedings against the accused charged for the abduction of the author’s son are pending before the High Court of Trincomalee. The Attorney‑General has, on behalf of the Government of Sri Lanka, informed the court to expedite the trial. The Government will thereafter refer the case to the Human Rights Commission of Sri Lanka to make recommendations on the question of payment of compensation including the determination of the quantum of such compensation.

Author’s comments

On 11 April 2005, counsel provided comments on the State party’s submission. He stated that the State party has failed to give effect to the decision as it has: failed to investigate all those responsible even though their particulars were made available by the author to the State party; failed to trace the interview the potential witnesses whose names and addresses were disclosed to the State party and whose evidence could cast light as to the whereabouts of the author’s son, and failed to cite them as witnesses for the prosecution in the case of Corporal Sarath; failed to pay compensation, deferring consideration of the payment of compensation to the conclusion of the said trial, which, in light of experience, is likely to lead to further inordinate delays if it does not lead to the question of compensation being deferred indefinitely. The case against Corporal Sarath has been pending in the High Court of Trincomalee for the last three years. There is noting on the case brief to indicate that any request to expedite the trial has been received by the Court, still less acted upon.

State party

SRI LANKA

Case

Nallaratnam Singarasa, 1033/2001

Views adopted on

21 July 2004

Issues and violations found

Unfair trial, mistreatment, no proper appeal ‑ articles 2, paragraph 3, 7, 14, paragraph 1, 14, paragraph 2, 14, paragraph 3 (c), 4, paragraph 3 (g).

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including release or retrial and compensation. The State party is under an obligation to avoid similar violations in the future and should ensure that the impugned sections of the PTA are made compatible with the provisions of the Covenant.

Due date for State party response

4 November 2004

Date of reply

2 February 2005

State party response

As a general observation the State party expresses its concern that several recent decisions made by the Committee have been taken without paying due attention to the Constitutional provisions and the prevailing legal regime in Sri Lanka. It submits that in order to maintain the confidence of Governments it is imperative that the Committee give due weight to these factors and ensure that the process to which the State party has made a commitment in good faith is not abused by interested parties for their own needs.

The State party refers to the reference to the Prevention of Terrorism Act (PTA) in the Views (communication No. 1033/2001 and No. 950/2000) and wishes to clarify that the PTA was introduced only as temporary legislation due to the extraordinary security situation that prevailed in the country, with a view to preventing acts of terrorism and other unlawful activities, which caused tremendous destruction to human life and property in the last two decades in the State party. Under the provisions of the PTA, if a suspect is detained under a detention order section 9 (1), such a person should be produced before a Magistrate not later than 72 hours from the time of the arrest. However, a person can only be detained in police remand custody for a maximum period of 18 months, during which investigations relating to the suspect must be concluded.After the signing of the Memorandum of Understanding (MOU), between the government of Sri Lanka and the LTTE in February 2002, all criminal investigations or arrests are carried out under the Criminal Procedure, and not under the PTA. Since the signing of the MOU, approximately 1,000 indictments of the PTA detainees have been withdrawn. In addition, 338 persons who were in detention pending charges were discharged at the end of 2003. As of January 2004, there are 62 cases pending in the Special High Court, established with a view to expediting such trials. These cases were filed before the MOU was signed and were not withdrawn by the Attorney‑General due to the seriousness of the offence.As to the Committee’s request with respect to this case, the State party submits that the Constitution of Sri Lanka and the prevailing legal regime do not provide for release, retrial or the payment of compensation to a convicted person, after his conviction is affirmed by the highest appellate court, the Supreme Court. To take such steps would be contrary to the Constitution and be tantamount to an interference of the independence of the judiciary. However, with a view to complying with the Views, the legal authorities “could” recommend to the President, the exercise of the sovereign power for the grant of a pardon by virtue of powers vested in her under article 34 of the Constitution. Such a grant of pardon is a matter of unfettered sovereign discretion of the President. In exercising the above power, the Constitution only empowers the President to grant a pardon or respite of the sentence but does not empower the President to revoke a conviction passed by a competent court.

State party

TAJIKISTAN

Case

Saidova, 964/2001

Views adopted on

8 July 2004

Issues and violations found

Death penalty, unfair trial and torture ‑ articles 6, 7, 10, paragraph 1, 14, paragraphs 1, 2, 3 (b), (d), and 5.

Remedy recommended

Under article 2, paragraph 3 (a), of the Covenant, the author is entitled to an effective remedy, including compensation.

Due date for State party response

20 October 2004

Date of reply

29 September 2004

State party response

The State party informed the Committee that Mr. Saidov’s execution had been carried out in the spring of 2001. The Ministry of Foreign Affairs of Tajikistan claim not to have received any information on the registration of this case or subsequent information from the Secretariat between 2001 and 2003, and no record was found in the Ministry’s Registry or Archives in this respect.

Further action taken/required

In October 2004 the Secretariat met with a Tajik delegation in the context of individual complaints, at which the issue of follow‑up to Views was considered. The delegation confirmed that up to 2002, information sent to the Mission in New York was not forwarded to its capital. From now on all information with respect to individual complaints will be sent to the Permanent Representative in New York, the Foreign Ministry and the OSCE in Tashkent.

During the eighty‑third session (29 March 2005) the Rapporteur met with a member of the Permanent Mission of Tajikistan to the United Nations. The Rapporteur explained his mandate and provided the representative with copies of the Views adopted by the Committee in the following communications: 1096/2002 (Kurbanov), 964/2001 (Saidov) and 1117/2002 (Khomidov). The Rapporteur expressed concern about the lack of information or unsatisfactory replies received from the State party regarding the implementation of the Committee’s recommendations on these cases. He suggested that the State party provide information about the measures taken to comply with such recommendations during the examination of the Tajikistan periodic report, in July 2005.

The State representative gave the Rapporteur assurances that he would inform his authorities in the capital about the Rapporteur’s request.

On 21 April 2005, the State party forwarded information on the following communications: 1096/2002 (Kurbanov), 964/2001 (Saidov) and 1117/2002 (Khomidov), in which it reiterated information previously provided.

State party

TAJIKISTAN

Case

Khalilov, 973/2001

Views adopted on

30 March 2005

Issues and violations found

The victim was tortured to force him to confess guilt. His father was beaten and tortured in front of him and, as a consequence, died in the police premises; the judgement by which he was sentenced to death could not be appealed. The sentence of death was passed and carried out, in violation of the right to a fair trial. The authorities’ failure to notify the author of the execution of the victim amounted to a violation of article 7. The Committee concluded that articles 6, paragraph 1, 7; 10, paragraph 1; 14, paragraphs 2, 3 (g) and 5 had been violated.

Remedy recommended

Effective remedy, including information on the location where the victim is buried and compensation.

Due date for State party response

30 June 2005

Date of reply

Note verbale dated 24 May 2005, received on 11 July 2005

State party response

The Ministry of Foreign Affairs received neither the Committee’s request not to execute the victim nor the subsequent notes from the Committee asking the State party to provide comments. The State party claims that it had no information on the fact that the communication was being examined by the Committee.

State party

TAJIKISTAN

Case

Kurbanov, 1096/2002

Views adopted on

6 November 2003

Issues and violations found

Arbitrary arrest and detention, torture, unfair trial, no/inadequate legal representation, no right to appeal, no interpretation, inhuman conditions, death sentence following unfair trial ‑ articles 6, 7, 9, paragraph 2, and 3, 10, 14, paragraphs 1, and 3 (a) and (g).

Remedy recommended

Compensation and a new trial before an ordinary court and with all the guarantees of article 14, or, should this not be possible, release.

Due date for State party response

10 February 2003

Date of reply

29 September 2004

State party response

The State party confirmed that following the Committee’s Views, the author’s death sentence was commuted to a “long term” of imprisonment. Subsequently, the State party informed the Committee that this was 25 years. The State party provides a copy of the joint reply of the Office of the General Prosecutor and the Supreme Court addressed to the Deputy Prime Minister. The General Prosecutor and the Supreme Court re‑examined the author’s case. He was arrested on 12 May 2001 suspected of fraud and was kept in detention since 15 May 2001. According to the authorities, the case file did not contain any information that the author had been subjected to torture or ill‑treatment, and he presented no complaint on this issue during the investigation or in court. The authorities concluded that his conviction of different crimes (including murders) was proved, that the judgement was grounded, and found no reason to challenge it.

Further action taken/required

During the eighty‑third session (29 March 2005) the Rapporteur met with a representative of the State party. The Rapporteur explained his mandate and provided the representative with copies of the Views adopted by the Committee in the following communications: 1096/2002 (Kurbanov), 964/2001 (Saidov) and 1117/2002 (Khomidov). The Rapporteur expressed concern about the lack of information or unsatisfactory replies received from the State party regarding the implementation of the Committee’s recommendations on these cases. He suggested that the State party provide information about the measures taken to comply with such recommendations during the examination of Tajikistan periodic report, in July 2005.

The State representative gave the Rapporteur assurances that he would inform his authorities in the capital about the Rapporteur’s request.

On 21 April 2005, the State party forwarded information on the following communications: 1096/2002 (Kurbanov), 964/2001 (Saidov) and 1117/2002 (Khomidov), in which it reiterated information previously provided.

State party

TAJIKISTAN

Case

Khomidov, 1117/2002

Views adopted on

29 July 2004

Issues and violations found

Death penalty, unfair trial, torture, arbitrary detention ‑ articles 6, 7, 9, paragraph 1, 2, 14, paragraphs 1, 3 (b), (e), (g).

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Khomidov with an effective remedy, entailing commutation of his sentence to death, a compensation, and a new trial with all the guarantees of article 14, or, should this not be possible, release.

Due date for State party response

3 November 2004

Date of reply

13 December 2004 (received March 2005)

State party response

The State party provides copies of the replies of the Office of the General Prosecutor and the Supreme Court. The General Prosecutor and the Supreme Court considered whether the author’s case should be re‑examined following the Committee’s finding of violations of the Covenant. Having made a substantial examination of the merits of the case, the Supreme Court considered that the conviction was grounded and lawful and found no reason for a re‑examination of the case. The Prosecutor came to the same conclusion. However, in light of the moratorium on the death penalty, dated 15 June 2004, the author’s death sentence was commuted to 25 years of imprisonment, the first five in prison and the rest in a “prison colony”.

On 21 April 2005, the State party forwarded information on the following communications: 1096/2002 (Kurbanov), 964/2001 (Saidov) and 1117/2002 (Khomidov), in which it reiterated information previously provided.

Further action taken/required

During the eighty‑third session (29 March 2005) the Rapporteur met with a representative of the State party. The Rapporteur explained his mandate and provided the representative with copies of the Views adopted by the Committee in the following communications: 1096/2002 (Kurbanov), 964/2001 (Saidov) and 1117/2002 (Khomidov). The Rapporteur expressed concern about the lack of information or unsatisfactory replies received from the State party regarding the implementation of the Committee’s recommendations on these cases. He suggested that the State party provide information about the measures taken to comply with such recommendations during the examination of Tajikistan periodic report, in July 2005.

The State representative gave the Rapporteur assurances that he would inform his authorities in the capital about the Rapporteur’s request.

State party

UKRAINE

Case

A. Aliev, 781/1997

Views adopted on

7 August 2003

Issues and violations found

Unfair trial, no right to legal representation ‑ articles 14, paragraphs 1 and 3 (d).

Remedy recommended

Since the author was not duly represented by a lawyer during the first months of his arrest and during part of his trial, even though he risked being sentenced to death, consideration should be given to his early release.

Due date for State party response

1 December 2003

Date of State party response

17 August 2004

State party response

According to the State party, the author’s case was examined by the General Prosecutor, who established that Aliev was properly convicted as charged on 11 April 1997 and sentenced to death. On 17 July 1997, the Supreme Court confirmed the conviction and sentence.

The author’s claim that he was denied access to counsel for a five month period during the investigation are concocted. He was arrested on 28 August 1996 and was interrogated in the presence of his lawyer. The criminal investigation into the author’s case was conducted with the participation of his lawyer, who was involved at all relevant stages, including during the trial. After the conviction Aliev and his lawyer appealed to the Supreme Court. It claims that the author was advised of the Supreme Court hearing but for unknown reasons he failed to appear.

The case file materials refute the claims by Aliev that he was subjected to “unlawful means of investigation”, or that any violations of criminal procedure law took place. There is no evidence to suggest otherwise, and Aliev made no such complaints at the time. It was only at his appeal that Aliev started to make claims about having been forced by the police to make a confession. In accordance with the amnesty on the death penalty in force, Aliev’s sentence was commuted to life imprisonment. In the circumstances, the State party claims that there is no basis to alter the findings of the relevant judicial bodies.

State party

URUGUAY

Case

Viana, 110/1981

Views adopted on

31 March 1983

Issues and violations found

Inhuman treatment, no legal counsel of own choosing and trial with undue delay ‑ articles 7, 10, paragraph 1, 14, paragraph 3 (b), (c), (d).

Remedy recommended

Provision of effective remedies and, in particular, with compensation for physical and mental injury and suffering caused to him by the inhuman treatment to which he was subjected.

State party response

On 31 May 2000, the State party had informed the Committee that it had decided to provide the author with compensation of US$ 120,000.

Author’s comments

By letter of 4 November 2004, the author alleges that the State party has not complied with the Committee’s Views.

State party

UZBEKISTAN

Case

Navarov, 911/2000

Views adopted on

6 July 2004

Issues and violations found

“Framing” for criminal offence, denial of legal advice and family access, discrimination due to religious belief ‑ articles 9, paragraph 3, and 14.

Remedy recommended

An appropriate remedy, including compensation and the author’s immediate release.

Due date for State party response

28 October 2004

Date of reply

27 October 2004

State party response

The State party provided a detailed response to the Committee’s Views. It will be recalled that the State party had failed to provide any information on the admissibility and merits of the case, prior to consideration by the Committee. In its reply the State party set out the facts. It submits that, contrary to the author’s claim, the car was only searched once on 26 December 1997 in the company of witnesses who gave evidence to that effect at the District Court hearing. The author was detained on 28 December, on the basis of his arrest and the charges against him and released on 31 December. Thus, according to the State party, he was not illegally detained for five days. On 29 December, he was interrogated in the presence of his lawyer who participated in the proceedings thereafter. As to the author’s request for the appointment of an expert to determine the geographical origin of the hemp, the State party submits that this was rejected by the Court as it would not have made any significant contribution to the criminal case. A forensic chemical expert on 27 December had confirmed that the substances were narcotic drugs. Finally, the State party submits that under the Amnesty Act under the Decree of the President of the Republic of Uzbekistan on 3 December 2002, the author was released from imprisonment on 21 January 2003. As he is a citizen of Kyrgystan, he was accompanied to the border and left the jurisdiction of Uzbekistan. In the State party’s view, the decision of the domestic courts in this case was correct.

State party

UZBEKISTAN

Case

Arutyunyan, 917/2000

Views adopted on

29 March 2004

Issues and violations found

Death penalty ‑ unfair trial and mistreatment ‑ articles 10, paragraph 1, and 14, paragraph 3 (d).

Remedy recommended

Provide Mr. Arutyunyan with an effective remedy, which could include consideration of a further reduction of his sentence and compensation. The State party is also under an obligation to prevent similar violations in the future.

Due date for State party response

12 July 2004

Date of reply

31 December 2004

State party response

The State party provided a detailed response to the Committee’s Views. It will be recalled that the State party had failed to provide any information on the admissibility and merits of the case, prior to consideration by the Committee. The only information provided by the State party was that the author’s death sentence was commuted to 15 years’ imprisonment. In its reply, the State party denies the allegations and findings against it. It states that the author was represented by counsel from 7 June 1999 throughout the preliminary investigation and trial. It adds that he confessed to the crime in a statement, and made no mention in court that he had been ill treated or put under pressure to sign a confession. From 27 September 1999 to 5 October 1999, the court hearing was suspended to allow his lawyer to study the case materials. On 20 December 1999, the author’s case was examined by the Appellate Court of the Supreme Court, at which author’s counsel made no mention of difficulties in preparing the author’s defence. None of the allegations made by the author are reflected in the case materials. The State party states that it is groundless to say that the death sentence was commuted to cover mistakes in the handling of the case, and that following several Amnesty Decrees the initial term of imprisonment of 20 years has been reduced to 6 years, 10 months and 11 days. In fact, the author’s imprisonment will be terminated on 15 April 2006. Between 6 December 2001 and 20 January 2004, the author was transferred from prison to a “colony” with a “strict regime”, and from 20 January 2004 to a colony with a “general regime”.

State party

UZBEKISTAN

Case

Hudoyberganova, 931/2000

Views adopted on

5 November 2004

Issues and violations found

Infringement of expression of religious belief (prohibited to wear headscarf) ‑ article 18, paragraph 2.

Remedy recommended

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Ms. Hudoyberganova with an effective remedy.

Due date for State party response

10 March 2005

Date of reply

26 April 2005

State party response

According to the State party, the individual opinions of Mr. Solari Yrigoyen, Sir Nigel Rodley and Mrs. Wedgwood, demonstrate that the author had failed to substantiate her claims on her exclusion from the Tashkent State Eastern Languages Institute, and also that her claims on the wearing of the hijab were contradictory.

The State party points out that the Institute is a secular education institution and as such has its internal regulations, compulsory for both staff and students. Ms. Hudayberganova was aware of the internal regulations’ provisions, but she refused to comply with them. Notwithstanding the warnings of the Institute administration, the author refused to comply with the internal regulations and systematically entered into conflict with professors. In particular, she accused a teacher of having received bribes.

It is stated that the author’s allegations that she was subjected to unlawful pressure by the administration do not reflect the reality and were groundless. According to the State party, Ms. Hudayberganova was excluded from the Institute following numerous warnings, not because of her religious beliefs, but because of her rude and immoral attitude vis‑à‑vis a professor and the violation of the Institute’s internal regulations.The State party also points out that Hudayberganova’s disrespectful attitude towards her professors and the conflictual character of her behaviour, created an “unfavourable” studying and moral atmosphere which had affected the whole educational process.

According to the State party, in its Views, the Committee did not take into account the author’s conflictual behaviour but had drawn its attention to the wearing of a “hijab”. It is stated that the “hijab” the author wore completely covered her face, except her eyes, which created certain difficulties in her contacts with professors during courses.

As to the author’s allegation that her exclusion was based on the banning of the “hijab” because of her religious beliefs, the State party contends that Islam does not prescribe the wearing of specific clothes, which was confirmed also by a specialist from the Committee on Religions to the Committee of Ministers of Uzbekistan.

According to the State party, the individual opinion of Mr. Solari Yrigoyen reflects in the best manner the substance of the case, whose motivations were “more complicated” than the ones presented and examined by the Committee.

Finally, the State party disagrees with the conclusion in Sir Nigel’s individual opinion in relation to the unclear reasons, for the State party, to install the “limitations in the author’s respect”. According to the State party, the limitations of the internal regulations in question applied not only to the author but to all staff and students, without exception.

State party

UZBEKISTAN

Case

Arutyuniantz, 971/2001

Views adopted on

30 March 2005

Issues and violations found

The victim’s trial did not respect the principle of presumption of innocence, in violation of article 14, paragraph 2.

Remedy recommended

An appropriate remedy, including compensation and either his retrial or his release.

Due date for State party response

31 June 2005

Date of reply

1 July 2005

State party response

The State party finds the conclusions of the Committee “inadmissible”, and refers to a range of evidence which proved the author’s guilt in the murders for which he was convicted. The State party further states that the courts did establish who killed the victims, i.e. both Mr. Arutyuniantz and his accomplice. According to the court, they had in any event both planned the murders. The State party considers its courts’ decisions to be correct and that they did not entail any violations of the presumption of innocence.